Docket Watch: Cooper v. Berger et al.

“A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty.”So reads Article 1, Section 35 of the North Carolina Constitution.Perhaps nowhere has North Carolina applied this maxim more frequently as of late than to the very institution charged with guarding the principle—its courts.

Change for the courts has been increasingly necessary, given the transformational developments in technology, legal practice, and society as a whole that have characterized the half century that has elapsed since North Carolina last overhauled its state court system.For example, Chief Justice Mark Martin convened a blue-ribbon commission in 2015 to undertake a comprehensive review of the state courts system and recommend changes to better equip North Carolina’s courts to meet modern needs.Outside of the Judicial Branch, leaders through the state have engaged in extensive debate over the structure and function of North Carolina’s courts, and the North Carolina General Assembly has passed a fair amount of legislation bringing many of the ideas in the public square to fruition.

The most recent potential change to North Carolina’s courts has come in the form of a proposed constitutional amendment that would alter how the state fills judicial vacancies between elections.[1]Since Reconstruction, North Carolina has selected its judges by election.[2]However, governors have long held the power to make appointments to vacant judicial seats.Although appointees must run in the next even-year election to keep the seat, one should not underestimate the import of the appointment power: a recent analysis of election results from 2008-2014 revealed that approximately 90% of judicial appointees later won election to full terms.

In contrast to the current gubernatorial appointment model, the proposed amendment would create a “Nonpartisan Judicial Merit Commission” charged with receiving public nominations for judicial vacancies and then rating the nominees as qualified or not under state law “without regard to the nominee’s partisan affiliation.” The Commission’s evaluations would then be forwarded to the General Assembly, which, in turn, would recommend at least two of the “qualified” nominees to the Governor.The Governor would then have ten days to make the appointment; otherwise the General Assembly could do so.[3]

In addition to drafting the proposed amendment itself, the General Assembly also drafted the language that will appear on the ballot to present the amendment to voters (the “Ballot Question”).The Ballot Question stated:

Constitutional amendment to implement a nonpartisan merit-based system that relies on professional qualifications instead of political influence when nominating Justices and judges be selected to fill vacancies that occur between judicial elections.

On August 5th, Governor Roy Cooper filed a lawsuit alleging, among other things, that the Ballot Question for the judicial vacancy amendment was constitutionally invalid because it failed “to describe [the] proposed amendment on the ballot in fair and accurate terms.”Driven by imminent deadlines for printing and distributing ballots, litigation proceeded quickly.

On August 21, a three-judge panel[4] issued a 2-1 decision granting the Governor’s Motion for Preliminary Injunction (here at 122-152).The panel acknowledged the state’s “beyond a reasonable doubt” standard for declaring unconstitutional an Act of the General Assembly; however, it also noted that it could identify no clear roadmap for analyzing the Governor’s claim, which had no real precedent in North Carolina law.Citing a 1918 North Carolina Supreme Court decision stating that ballots should enable voters to “intelligently express their opinion,” the panel focused its inquiry on whether the Ballot Question clearly and fairly described the substance, purpose, and effect of the amendment and whether it implied a position for or against the amendment.On these grounds, the panel concluded that the ballot question misrepresented or omitted aspects of the amendment to such a degree that the Governor was likely to succeed on the merits of his constitutional claim, thus warranting the preliminary injunction.One of the three judges dissented (here at 158-172), concluding that the political question doctrine precluded the court’s consideration of the question and that the Act as a whole was not so patently or fundamentally unfair as to violate substantive due process.

Although emergency appeals ensued, the legislature promptly reconvened to address the court’s order.On August 27th, the legislature approved new a Ballot Question for the amendment, which stated:

Constitutional amendment to change the process for filling judicial vacancies that occur between judicial elections from a process in which the Governor has sole appointment power to a process in which the people of the State nominate individuals to fill vacancies by way of a commission comprised of appointees made by the judicial, executive, and legislative branches charged with making recommendations to the legislature as to which nominees are deemed qualified; then the legislature will recommend at least two nominees to the Governor via legislative action not subject to gubernatorial veto; and the Governor will appoint judges from among these nominees.

The Governor immediately filed motions to amend the complaint and for a temporary restraining order.After a hearing, the panel issued a unanimous decision (here at 337-351) on Friday, August 31 concluding that while perhaps not perfect, the new Ballot Question was not so misleading as to be facially unconstitutional beyond a reasonable doubt.Accordingly, the court denied the Governor’s motion for a temporary restraining order.

The parties immediately appealed the Order directly to the state supreme court.On Tuesday, September 4th, the Supreme Court issued an order unanimously affirming the trial court’s decision and allowing the proposed language to appear on the November ballot.

Thus, North Carolina voters will have the opportunity to recur to fundamental principles about judicial selection this fall.Whether that recurrence will result in a change that helps secure the blessings of liberty, however, will surely continue to be a topic of much discussion and litigation going forward.

Andrew D. Brown is an Associate at Shanahan McDougal, PLLC and a member of the Steering Committee for the Triangle Chapter of the Federalist Society. Shanahan McDougal, PLLC is a boutique law firm in Raleigh, North Carolina that offers a full range of complex litigation and business services.

[2] There is a very small group of judges known as “special superior court judges,” who serve five-year, state-wide terms, upon express legislative authorization and gubernatorial appointment.This group includes judges that comprise the North Carolina Business Court.

[3] The amendment also provides other contingency mechanisms should the normal process not fully function for some reason or another.

[4] Under N.C. Gen. Stat. § 1-267.1, a facial challenge to an act of the General Assembly is transferred to a three-judge panel of the superior court for adjudication.